Hurt feelings not enough in First Amendment case

The publisher of the Westchester Guardian was hounding the mayor of the City of Yonkers in print. Local newspapers do that. Mayor Amicone fought back, though, giving a speech in which he called the publisher a "convicted drug dealer," "Albanian mobster" and "thug" who would open "drug dens" and "loot" the "pension funds" of Yonkers residents. Is this retaliation under the First Amendment?

The case is Zherka v. Amicone, decided on March 2, one of several cases coming down the pike between this newspaper and public officials in Westchester. Zherka says these public comments were defamatory per se and therefore injurious under the First Amendment. This is a creative argument, and maybe the only one that Zherka; he cannot rely on the traditional "chilling effect" argument to prove his injury in light of his newspaper's continued attacks against the mayor, calling him "Dumb, Dumber and Dumbest" and accusing him of "rap[ing] taxpayers" and "reward[ing] cronies."

The Court of Appeals (Wesley, Chin and Pooler) finds that Zherka does not have a case. Under Second Circuit case law, to win under the First Amendment, people like Zherka have to show that the public official's response to his speech chilled further speech. Defamation per se (i.e., calling the plaintiff a criminal) is not going to cut it, not without allegations that the defamatory comments caused the plaintiff actual harm. While defamation per se cases presume harm when you call the plaintiff a criminal, that lenient model actually hurts Zherka here because he does not allege in his Complaint that the mayor's comments went beyond hurt feelings. As Judge Wesley puts it:

We have before us, in a sense, “speech against speech.” Zherka’s publications are core protected speech under the First Amendment. Amicone’s alleged retaliation did not come in the form of denial of a permit or threat of a lost contract. Rather, it was a group of statements – none very kind – about Zherka. Retaliatory insults or accusations may wound one’s soul, but by themselves they fail to cross the threshold of measurable harm required to move government response to public complaint from the forum of free speech into federal court.